Opinion: Supreme Court should strike down gay marriage ban

Within the next two weeks, the Supreme Court will issue one of the most anticipated decisions of this term. Hollingsworth v. Perry was brought in the aftermath of Proposition 8, a referendum in which Californians voted against the right of same-sex couples to marry in the state.

Although voters approved Prop 8 in 2008, lower courts have been divided about its constitutionality. Now the Supreme Court is poised to weigh in on the gay marriage ban.

The high court should strike down Prop 8. The arguments against same-sex marriage are weak. Gay couples deserve the same rights as other Americans, including the right to wed. And this case matters to Latinos, because all Hispanics benefit from protection against discrimination.

The Prop 8 lawyers maintain that traditional marriage “advances society’s vital interest in responsible procreation and child rearing.” But many people get married who cannot have children, or chose not to have them. If we only sanctioned marriage between those who can “procreate,” then senior citizens and infertile couples would not be allowed to wed. Besides, marriage is not necessarily about having children; it is about love and commitment.

The Prop 8 lawyers say that changing the definition of marriage will harm society. However, we have redefined marriage before, for the better. Forty-six years ago, in Loving v. Virginia, the Supreme Court struck down a state law that barred interracial marriage. Making marriage more inclusive does not harm anyone. Allowing same-sex couples to wed will actually strengthen society, because it will promote stable unions.

At the oral argument for the Prop 8 case, Justice Antonin Scalia said, “There’s considerable disagreement among sociologists as to what are the consequences of raising a child in a single-sex family, whether that’s harmful or not.” In fact, there is not any such disagreement. The scholarly consensus is that children with gay parents do as well as other kids. All of the major experts in child welfare, including the American Medical Association, the American Academy of Pediatrics, the National Association of Social Workers, and the American Psychiatric Association support the right of same-sex couples to wed.

What’s more, there is sound constitutional basis for striking down Prop 8. It violates the due process rights of same-sex couples, because it denies them the right to marry while not furthering a legitimate state interest. It violates the Equal Protection clause of the Fourteenth Amendment, because it singles same-sex couples out for unequal treatment under the law.

If the Supreme Court upholds Prop 8, it risks being out of step with a society that is increasingly accepting of same-sex marriage. Consider that when Prop 8 was on the ballot, it was supported by a slight majority of California’s Latino voters. Yet today a majority of Latinos support marriage equality.

True, there are Americans who do not support same-sex marriage due to their religious beliefs. They are entitled to their convictions, just as same-sex couples are entitled to the same legal rights, recognition, and protection as other citizens. As activist Dolores Huerta recently wrote in an Op-Ed for NBC Latino, “Whether it’s our hijos or hijas, hermanos or hermanas, or tíos and tías, we believe in the same freedoms for everybody, no matter who you are or whom you love.”

Prop 8 deserves to fall because it advances no legitimate state interest and runs counter to constitutional principles. Latinos and other Americans will benefit from a decision in favor of civil rights for all.

NBC Latino contributor Raul A. Reyes is an attorney and member of the USA Today Board of Contributors.